Inadequate disability-specific services in prison make this exclusion inconsistent with conditions in the United Nations’ “Mandela Rules”. These set out minimum requirements for the treatment of prisoners. They state health care in prison must be equivalent to that in the community.

Excluding prisoners from the NDIS is also inconsistent with Articles 12 and 13 of the UN Convention on the Rights of Persons with Disabilities. These state that people with disabilities must have equal legal capacity with others in all aspects of life. This includes equal access to, and within, the justice system.

Australia ratified the UN convention in 2008 and the optional protocol in 2009. In December 2015, Australia and all other members of the UN General Assembly unanimously adopted the Mandela Rules.

This means the federal government, by excluding prisoners from the NDIS, is discriminating against prisoners with a disability in direct contravention of our international human rights obligations.

People with disability are more at risk of incarceration and, without adequate support, of re-offending. Interrupting care also puts those with a disability at risk of further incarceration.

Further, denying services to prisoners with a disability doubly disadvantages Indigenous prisoners and potentially widens the gap of Indigenous disadvantage.

Disability increases incarceration risk

Disability often restricts workplace, school and social participation. People with a disability are at increased risk of poverty and social exclusion. They often have complex health and social needs, and experience barriers to accessing health and social services.

Although Indigenous prisoners are more likely than non-Indigenous prisoners to experience a disability, their disabilities are less likely to be identified. And among prisoners with a disability, those who identify as Indigenous are less likely to have received disability services before incarceration. This means Indigenous people with a disability can find the experience of incarceration particularly harrowing.

A lack of consistent care likely perpetuates the inequalities that Indigenous people experience prior to incarceration.

More likely to return to custody

Our recent research found the majority of prisoners with intellectual disability likely remain unidentified and unsupported when they return to the community. They often lack the capacity to look after their health, including through access to health services.

Not surprisingly, intellectual disability is a risk factor for return to custody. Ex-prisoners with generally poorer health are more likely to return to custody.

The federal government has repeatedly refused to reconsider a clause in the Health Insurance Act (1973) that excludes prisoners from Medicare and PBS subsidies. A similar exclusion exists in the much-maligned US prison system.

The NDIS exclusion is yet another substantial barrier between disability service providers and prisoners. By implementing this exclusion, the government is flying in the face of compelling evidence that interruptions in care for people with a disability increase the risk of poor health and re-offending.

Effectively meeting the health, social and cultural needs of Indigenous people with a disability in custody is central to ending the cycle of incarceration and closing the gap. The government’s decision to actively exclude prisoners from the NDIS will exacerbate an already unsettling track record of contravening the human rights of Indigenous Australians.

Authored by Jesse Young, Research Fellow and PhD Candidate, University of Melbourne and Stuart Kinner, Professor, Murdoch Childrens Research Institute.